1. On 20 April 2005 the appellant pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003:

(1) A person commits an offence if 

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis; and

(b) the other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

2. For the purpose of sentence, the prosecution accepted the appellants version of the facts, namely, that the accused was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. On 8 July 2005 Judge Hone sentenced him to a 12 month detention and training order. The appellant appealed on the grounds that (1) the conviction violated his right to a fair trial and the presumption of innocence under article 6 of the Convention, because it was an offence of strict liability, and (2) it violated his right to privacy under article 8 because it was disproportionate to charge him with rape under section 5 when he could have been charged with a less serious offence under section 13, which deals with sex offences committed by persons under 18. The Court of Appeal dismissed the appeal against conviction but allowed an appeal against sentence and substituted a conditional discharge. It certified two questions as being of general public importance:

(2) Is it compatible with a childs rights under article 8 to convict him of rape contrary to section 5 in circumstances where the agreed basis of plea establishes that his offence fell properly within the ambit of section 13 ?

3. The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.

4. Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone is entitled to a fair and public hearing and article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law will have any particular substantive content: see Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163. Likewise, article 6(2) requires him to be presumed innocent of the offence but does not say anything about what the mental or other elements of the offence should be. In the case of civil law, this was established (after a moment of aberration) by Z v United Kingdom (2001) 34 EHRR 97. There is no reason why the reasoning should not apply equally to the substantive content of the criminal law. In R v Gemmell [2002] EWCA Crim 1992; [2003] 1 Cr App R 343, 356, para 33 Dyson LJ said:

The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6.

5. The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that presumptions of fact or of law in criminal proceedings should be confined within reasonable limits". No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle.

6. My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom (2001) 34 EHRR 97. I would recommend your Lordships to do likewise. For my part, I would simply endorse the remarks of Dyson LJ in R v Gemmell [2003] 1 Cr App R 343, 356.

7. The other ground of appeal is that the conviction violated the appellants right of privacy under article 8. This is, on the face of it, an astonishing proposition. Is it really being suggested that a young person under 18 has a human right to have undisturbed sexual intercourse with a child under 13? If anything is likely to bring human rights into disrepute, it is such a claim.

8. When one examines the argument of Mr Owen QC for the appellant, however, he is not saying any such thing. He does not claim that sexual intercourse with children under 13, even in the privacy of the appellants home, ought not to be prohibited. But he says that, as he was only 15 at the time of the offence, the Crown acted unduly harshly by prosecuting him under section 5 rather than under section 13, which deals with sexual offences committed by persons under 18 and carries a maximum penalty of imprisonment for 5 years.

9. Assuming this to be right, the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home.

10. Prosecutorial policy and sentencing do not fall under article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.

11. It is true that in Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 (the sado-masochism case) the Strasbourg court, in deciding whether prosecution was a proportionate interference with indulgence in such practices in private, noted (at para 49) that reduced sentences were imposed on appeal". And in KA and AD v Belgium (Application Nos 42758/98 and 45558/99) (unreported 17 February 2005), a similar case from Belgium, the court also noted that the sentences were not disproportionate. But the issue in both cases was whether such activities should be criminalised at all. The judgments contain no explanation of why the sentences were thought to be relevant.

12. In my opinion, therefore, the answers to the certified questions are no and yes respectively. That leaves only the question of whether in the particular circumstances of this case, it was an abuse of process for the Crown to prosecute under section 5. That is not a question which has been certified. For what it is worth, I agree with the Court of Appeal that the Crown was not obliged to withdraw the charge under section 5 when they found themselves having to accept the appellants version of events. Rape of a child under 13 still accurately described what the appellant had done. Parliament decided to use this description because children under 13 cannot validly or even meaningfully consent to sexual intercourse. So far as the basis of plea provided mitigation, they were entitled to leave the judge to take it into account. I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

13. Section 5 of the Sexual Offences Act 2003, which makes sexual intercourse with a child under 13 a crime of strict liability irrespective of the age of the defendant and calls it rape, has given rise to some important and difficult questions: see J R Spencer, The Sexual Offences Act 2003: (2) Child and Family Offences [2004] Crim L R 347, 360. Section 13 of the same Act, read with section 9(1)(c)(ii), makes it an offence for a person under 18 to have sexual intercourse with a child under 13. Unlike section 5, it does not attach the label of rape to this offence. What behaviour then should the criminal law prohibit, and what should it not? To what extent is it is reasonable to leave it to the police and other authorities to decide when to prosecute and, where there is a choice, for which offence? These questions have been brought out into the real world by this case.

14. There is no doubt that when section 5 of the 2003 Act was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran [2005] EWCA Crim 192, para 6, its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them. But the creation of an unqualified offence of this kind carries with it the risk of stigmatising as rapists children who engage in a single act of mutual sexual activity. A heavy responsibility has been placed on the prosecuting authorities, where both parties are of a similar young age, to discriminate between cases where the proscribed activity was truly mutual on the one hand and those where the complainant was subjected to an element of exploitation or undue pressure on the other. In the former case more harm than good may be done by prosecuting. In the latter case the threshold will have been crossed and prosecution is likely to be inevitable. But if in the former case it is decided to prosecute, a decision still has to be made about the section under which the perpetrator is to be prosecuted.

15. Of course, the prosecuting authorities can only work on what they have got. As Mr Perry QC for the respondent put it, they can only engage with the complainers account of events. No criticism can be made of the decision to prosecute under section 5 in this case in view of the account which the complainant gave when she was interviewed by the police. At the time of the events complained of the appellant was aged 15 and the complainant was aged 12. She said that he had vaginal intercourse with her despite the fact that, alarmed by what was to happen, she made clear her objections. Then the situation changed. The complainant accepted that she had told the appellant that she was 15 and she was reluctant to attend court to give evidence. The appellant pleaded guilty to a contravention of section 5 of the 2003 Act on the basis that the complainant willingly agreed to have sexual intercourse with him and that he believed at the time that she was 15. The appeal arises from the fact that the prosecution informed the court that they had decided to accept his plea of guilty on this basis as one of guilty to the offence charged under section 5.

16. The judge sentenced the appellant to a twelve months detention and training order. But the appellant had been in custody for about five months before he was granted bail on being granted permission to appeal against his sentence. So there were grounds for regarding the sentence as excessive. It was quashed by the Court of Appeal and replaced with an immediate conditional discharge for a period of twelve months: [2006] EWCA Crim 821, [2006] 1 WLR 2052. As the court pointed out in para 52 of its judgment, if the appellant committed no offence during that period the notification requirement imposed by Part 2 of the 2003 Act would end with it and he would not thereafter be deemed to have had a conviction.

17. Mr Owen QC for the appellant maintained nevertheless that the full impact of his conviction for rape under section 5 was, is and will continue to be substantial. He was morally blameless, but he would carry the stigma of a conviction for rape with him for the rest of his life. His argument was that the conviction under that section on the agreed basis was a violation of his rights under article 6(2) of the European Convention on Human Rights and that, in any event, it was not compatible with his right to respect for his private life under article 8 of the Convention. He submitted that the prosecution ought to have been discontinued, or alternatively that the prosecutor should have sought a conviction under section 13 of the 2003 Act, read with section 9(1)(c)(ii), which would not have carried with it the stigma of a conviction for rape.

The alternative offences

18. Section 5 of the 2003 Act is headed Rape of a child under 13". A person commits an offence under that section if he intentionally penetrates the vagina, anus or mouth of another person with his penis and the other person is under 13. He is liable on conviction on indictment to imprisonment for life. It replaced section 5 of the Sexual Offences Act 1956 which bore the side note Intercourse with girl under thirteen and provided: It is a felony for a man to have unlawful sexual intercourse with a girl under the age of thirteen. The corresponding provision for Scotland is section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The section is headed Intercourse with girl under 16". Subsection (1), which applies where the girl is under 13, provides: Any person who has unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for life. The alteration in the way section 5 is described from the description which was applied to its predecessor is significant.

19. Section 5 of the 2003 differs from the provision which it replaced in three respects. The first, as I have just said, is its heading. The offence contrary to section 5 of the 1965 was commonly described as statutory rape". Now this is its official designation. Rape is an apt description of any kind of coercive penetrative sexual activity. It is not if the sexual activity was truly consensual. It has been applied to section 5 because at common law a girl under 13 cannot consent to sexual intercourse. Second, it applies to offences against boys under the age of 13 as well as girls. Third, it applies to the use of the penis to penetrate the mouth as well as the vagina or the anus of the complainant. So the scope of the protection has been extended, to keep pace with current trends in sexual behaviour. There is no upper or lower limit to the age of the person by whom the offence may be committed. The fact that a contravention of rape under this section may attract a sentence of life imprisonment is an indication of the gravity of the offence.

20. The actus reus of the offence created by section 5 is the penetration by the penis of the vagina, anus or mouth of a complainer who is under the age of 13. Mens rea as to the age of the complainer is not required. The mens rea is using the penis deliberately to penetrate the relevant orifice. As Gordon, Criminal Law, 3rd ed (2000), para 7.08 points out, the modern usage of mens rea is quite independent of moral wickedness or of any idea of general criminal depravity. Each crime has its own mens rea. It does not have to match every part of the actus reus. The mental element varies according to the different nature of different crimes. It has been described as the mental element necessary for the particular crime: Glanville Williams, Criminal Law: The General Part, 2nd ed (1961), p 31.

21. In this case the requirement of mens rea has not been wholly eliminated. The offence which the section creates is one of strict liability in the sense that proof of the intentional penetration of a child under 13 is all that is needed for a conviction. Mistake as to age is a defence in the case of offences committed against older children. In the case of children under 13 it is not. This must be taken to have been a deliberate choice by Parliament which, under domestic law, it was entitled to take. The principle which has been applied is that intentional sexual activity of the proscribed kind with children below that age should not be permitted in any circumstances. In R v Hess; R v Nguyen [1990] 2 SCR 906 McLachlin J said, at p 948, that the protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. Sections 5 to 8 were designed to protect children under 13 of both sexes from sexual conduct perpetrated against them by anyone.

22. This, however, is not the only way in which sexual activity between children may be prosecuted. A group of sections, sections 9 to 15, is headed Child sex offences". Section 9 is headed Sexual activity with a child". It criminalises intentional touching of a sexual nature, including penetration of the complainers vagina, anus or mouth. It applies where the person accused of the offence is over 18. If the other person is under 16, it is a defence that the person accused reasonably believed that the other person was 16 or over. If the other person is under 13 the offence is one of strict liability, as it is in section 5: section 9(1)(c)(ii). The defence of mistaken belief in age is not available. Section 13 extends its reach to protect children from sexual assaults by other young people. It provides that a person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18. He may be prosecuted either on indictment or summarily. The maximum sentence on indictment is 5 years imprisonment.

23. Conduct of the kind that was the basis of the appellants decision to plead guilty in this case was within the reach of section 9(1)(c)(ii) as extended by section 13 to acts committed by persons under 18. As the Scottish Law Commission observed in its discussion of the various offences that are available in English law involving children under 13, a sexual offence with a girl of that age who does consent is not [their emphasis] an example of what is sometimes called statutory rape: Report on Rape and Other Sexual Offences (December 2007, Scot Law Com No 209), para 4.27. The choice as to which of sections 5 or 13 to employ is left by the statute entirely to the prosecutor. The context suggests however that a child under 18 ought not to be prosecuted under section 5 for performing a sexual act with a child under 13 of the kind to which that section applies unless the circumstances are such as to indicate that it plainly was an offence of such gravity that prosecution under section 13 would not be appropriate. It suggests that a child under 18 (and more especially a child as young as 15) should not be prosecuted under section 5 (rape of a child under 13) if the complainer says that he or she consented to sexual intercourse. The problem revealed by this case is the familiar one which faces every prosecutor. The complainers account of events may change. The appellant seeks to find a solution under sections 6 and 7 of the Human Rights Act 1998 to the way he was dealt with in this case.

Article 6(2)

24. Mr Owens primary submission was that the offence which section 5 creates, interpreted as one of strict liability, is incompatible with article 6(2) of the Convention, which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. He sought support for this argument in the observations of the European Court in Salabiaku v France (1988) 13 EHRR 379. In paras 27- 28 of its judgment the court said:

27. As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.

28 Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law .

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.

25. Mr Owen sought to apply what he described as the reasonable limits test to the offence that section 5 creates. The effect of any offence of strict liability, he said, was to create a presumption that the accused had done something of which he was innocent. So the creation of strict criminal liability will always engage a consideration of compatibility with the presumption of innocence in article 6(2). The conduct to which the appellant had pleaded guilty in this case was morally blameless, as the complainant willingly agreed to have sexual intercourse with him. It was difficult to distil from Salabiaku a clear principle that strict criminal liability was always free from regulation under article 6(2). The European Court said in para 27 that the Contracting States could penalise a simple or objective fact as such irrespective of whether there was criminal intent. But it had made it clear that it could only do so under certain conditions. This was to be read as applying not just to matters of procedure. The substance of an offence could be examined too, and it would violate article 6(2) if it failed properly to recognise that the accused is to be presumed innocent until proven guilty of the conduct which it was intended to deter.

26. He said that support for this submission was to be found in Hansen v Denmark, application no 28971/95, 16 March 2000. That case concerned the compatibility of a strict liability tachograph offence with article 6(2). Although the complaint was declared inadmissible, the court adopted and applied the references in para 27 and 28 of Salabiaku to certain conditions and reasonable limits to test the issue of compatibility. They were not said to be irrelevant to an offence of strict liability. Domestic authority which might suggest the contrary, referred to by the Court of Appeal in paras 37-39, should not be followed: eg Barnfather v Islington Education Authority [2003] EWHC 418 (Admin); [2003] 1 WLR 2318, para 18, per Maurice Kay J; R v Daniel [2002] EWCA Crim 959; [2003] 1 Cr App R 99, para 34, per Auld LJ.